Carbo v. United States

• Decision Date: 09 January 1961
• Docket Number: No. 72,72
• Citation: 364 U.S. 611,5 L.Ed.2d 329,81 S.Ct. 338
• Parties: Paul John CARBO, Petitioner, v. UNITED STATES
• Court: U.S. Supreme Court

364 U.S. 611

81 S.Ct. 338

5 L.Ed.2d 329

Paul John CARBO, Petitioner,

v UNITED STATES.

No. 72.

Argued Nov. 16, 1960.

Decided Jan. 9, 1961.

Messrs. A. L. Wirin and William B. Beirne, Los Angeles, Cal., for petitioner.

Miss Beatrice Rosenberg, Washington, D.C., for respondent.

Mr. Justice CLARK delivered the opinion of the Court.

The sole question in this case is whether the United States District Court for the Southern District of California has jurisdiction to issue a writ of habeas corpus ad prosequendum directing a New York City prison official to deliver petitioner, a prisoner of that City, to California for trial on an indictment pending in the California court.¹ Both the District Court and the Court of Appeals have held that such jurisdiction does exist. 9 Cir., 277 F.2d 433. Recognizing that the effective administration of criminal justice required our decision on the point, we granted certiorari 363 U.S. 802, 80 S.Ct. 1239, 4 L.Ed.2d 1146. We affirm the judgment.

Petitioner, one of five defendants indicted on September 22, 1959, in the District Court for the Southern District of California on charges of extortion and conspiracy,² was arrested in Baltimore, Maryland, where he posted bond returnable to the California court. Before appearing in California pursuant to his obligation under the bond, petitioner pleaded guilty to three misdemeanor charges in New York City and was sentenced to serve a two-year term in the New York City Prison, in addition to payment of a fine. Pursuant to a writ of habeas corpus ad prosequendum issuing from the California court to the New York City prison authorities, the petitioner appeared in custody before that court, was arraigned and pleaded not guilty to the indictment. Upon petitioner's request the court ordered that he be returned to the New York City Prison in custody in order to obtain counsel and that he thereafter be returned³ to California in time for trial on the indictment set for March 29, 1960. In order that petitioner might meet the obligation of his bond, as well as that of the latter order, the court, on March 16, 1960, again issued a writ of habeas corpus ad prosequendum to the New York City prison official directing the return of the petitioner for trial on March 29, 1960. On the same date and before it could be served, the petitioner moved to quash the writ. His sole ground of objection was that the United States District Court for the Southern District of California had no power to issue the writ to an officer located outside of its territorial limits. The contention is bottomed on the language of 28 U.S.C. § 2241 as codified in 1948, 28 U.S.C.A. § 2241.⁴ We have concluded that the issuance of the writ of habeas corpus ad prosequendum was within the jurisdiction of the court as authorized by the Congress in § 2241.

This is the first time this Court has undertaken a construction of the statutory authority for the issuance of writs of habeas corpus ad prosequendum since Chief Jus- tice Marshall, in Ex parte Bollman, 1807, 4 Cranch 75, 2 L.Ed. 554, interpreted the language of the First Judiciary Act, 1 Stat. 81—82 (1789). It seems, therefore, both appropriate and in our view necessary to first trace the course followed by congressional action granting judicial power to issue writs of habeas corpus generally.

Section 14 of the First Judiciary Act gave authority to

'all the * * * courts of the United States * * * to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And * * * either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.—Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.' 1 Stat. 81—82 (1789).

We are indeed fortunate to have the benefit of the close scrutiny to which Chief Justice John Marshall subjected § 14 in Ex parte Bollman, supra. Initially, the Chief Justice observed that 'for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law.' 4 Cranch, at pages 93—94. Mindful perhaps of his own observation the preceding year that 'There is some obscurity in the act of congress.' Ex parte Burford, 3 Cranch 448, at page 449, 2 L.Ed. 495, he then proceeded to analyze the meaning of the writ as described in § 14. He recognized that the term habeas corpus 'is a generic term' including many species of that writ. It encompassed, he concluded, in addition to the Great Writ (habeas corpus ad subjiciendum, for an inquiry into the cause of restraint) the writ habeas corpus ad prosequendum. The 'Great Chief Justice' noted, however, that when used in the Constitution,⁵ that is, 'when used singly—when we say the writ of habeas corpus, without addition, we most generally mean that great writ' traditionally used to test restraint of liberty. Ex parte Bollman, supra, 4 Cranch at page 95.

The Chief Justice, following the English practice, particularly 3 Blackstone, Commentaries *129, noted that the writ ad prosequendum was necessary to remove a prisoner in order to prosecute him in the proper jurisdiction wherein the offense was committed. In his discussion of the common usage of the various writs, he recognized in Ex parte Bollman, supra, that the Congress had without qualification authorized the customary issuance of the writ ad prosequendum by a jurisdiction not the same as that wherein the prisoner was confined.

Following the Judiciary Act of 1789, there came a series of legislative amendments dealing with habeas corpus, but, significantly, all related solely to the usages of the Great Writ.⁶ Simultaneously with the expansion of the Great Writ, there developed from the common source, § 14 of the first Judiciary Act, a second line of statutes—the 'All writs' portion of § 14, in large measure the first sentence of that section, devolved by a process of addition along a course parallel to but separate from the habeas corpus provisions. Upon revision of the federal statutes in 1874, the general power of courts to issue writs of habeas corpus, which was a part of the express grant in the first sentence of § 14, disappeared from the language of the statutes derivative from the all writs portion of the first sentence, R.S. § 716 (1875), which after further amendment, is known today as 28 U.S.C. § 1651, 28 U.S.C.A. § 1651.⁷ This general power was, however, retained in the first of the three reorganized sections of the Revised Statutes dealing with habeas corpus, R.S. § 751 (1875),⁸ and served as the modern version of the authority for writs ad prosequendum upon which Marshall had relied in Ex parte Bollman.

The second section in the 1875 Revision of the laws on habeas corpus, R.S. § 752, authorizing issuance of the Great Writ by justices and judges, included the jurisdictional limitation⁹ which had been imposed for the first time¹⁰ in 1867, 14 Stat. 385. The motive for that limitation can be traced to the position reportedly taken by Chief Justice Chase in rejecting an application for the Great Writ from a prisoner on the ground that he was incarcerated outside his circuit.¹¹ Mindful of the position taken by the Chief Justice, the Senate amended the first draft of the bill expanding once again the usage of the Great Writ and inserted the phrase 'within their respective jurisdictions'—an obvious limitation upon the action of individual judges and justices in exercising their power to issue the Great Writ. The debates in Congress indicate that it was thought inconvenient, potentially embarrassing, certainly expensive and on the whole quite unnecessary to provide every judge anywhere with authority to issue the Great Writ on behalf of applicants far distantly removed from the courts whereon they sat.¹²

The third section in the revised arrangement, R.S. § 753, collected all the instances in which the Great Writ might issue on behalf of imprisoned applicants.

From this history it becomes obvious that the Congress had continual concern for the Great Writ—habeas corpus ad subjiciendum. Exclusively to it did it give attention, and only upon its issuance did it impose a limitation. The other species of the writ, including that involved here—habeas corpus ad prosequendum—continued to derive authority for their issuance from what had been the first sentence of § 14 of the First Judiciary Act, which was not repealed until the 1875 Revision of the Statutes at Large, when it was re-enacted as two separate and distinct sections, R.S. § 716 (all-writs) and R.S. § 751 (general habeas corpus).

The Congress had obviously made an attempt to completely separate the habeas corpus provisions from those concerning other writs. However, just as in 1789 Marshall had found authority for the writ ad prosequendum in the reference to habeas corpus in the first sentence of § 14, so too in 1875 its authority was constituted in the lineal derivative of that sentence, R.S. § 751, which gave courts without jurisdictional limitation, as distinguished from individual judges, R.S. § 752, the power to issue writs of habeas corpus generally. State v. Sullivan, C.C., 50 F. 593, 598. Clearly, the use of the phrase in § 751 was generic, whereas the grant of authority to judges 'within their respective jurisdictions' in R.S. § 752 was specific, meaning only the Great Writ.¹³

Thus, the ad prosequendum writ, necessary as a tool for jurisdictional potency as well as administrative efficiency, extended to the entire...